THE EARL OF LIMERICK
, in rising to ask whether the Solicitor to the Trea- 1589 sury has been directed to appear for Lord Penzance in the appeal of Mackonochie v. Martin, now pending in the House of Lords; and, if so, whether there have not been many instances of applications for prohibitions to ecclesiastical Judges, and whether the Treasury has ever appeared on behalf of any ecclesiastical Judge in any such case; and to move for a Return of all costs already incurred by the Treasury on behalf of Lord Penzance in the cases of Martin v. Mackonochie and of Mackonochie v. Martin—said, he understood there had been many cases of prohibitions on former occasions, in many of which the Judge of the Court did not appear as a party to defend his jurisdiction, and in none of which, he believed, had the costs ever been paid by the Treasury, and he would also observe that Lord Penzance was not one of Her Majesty's Judges, but had been appointed to his present office by the Archbishop of Canterbury and the Archbishop of York. He (the Earl of Limerick) thought it curious that funds derived from the taxpayers of the country, including persons of all denominations of religious belief, should be employed in that way in connection with proceedings which originated in the first instance out of a question as to the due performance of the public worship of the Church of England. The payment of those costs was, he understood, an entirely novel proceeding. Such a course might be a great hardship to a clergyman who thought he had suffered wrong in the Ecclesiastical Courts, and was met in the Civil Courts with all the weight of the public purse. It was, in fact, stated that in the present case the original promoter (Mr. Martin) did not appear before the House, but left the Treasury to oppose Mr. Mackonochie.
§ Moved for, Return of all costs already incurred by the Treasury on behalf of Lord Penzance in the cases of Martin v. Mackonochie and of Mackonochie v. Martin.—(The Earl of Limerick,)
THE LORD CHANCELLOR
, in answer to the noble Earl, had to state that the Solicitor to the Treasury had been directed to appear for Lord Penzance in the appeal to which the noble Earl referred, and which was now proceeding in the House of Lords. That direction was given under these circumstances:—Lord Penzance was de- 1590 fended in the Court of First Instance in the same manner. When the question was before the Court of Queen's Bench there was a difference of opinion among the learned Judges—two of them being against the jurisdiction which Lord Penzance had exercised, and another Judge dissenting. It was thought right that Lord Penzance should be in the same way defended by the Solicitor to the Treasury when an appeal was taken from that Court, and it followed that when a further appeal was afterwards taken to the House of Lords the same course should be adopted. The noble Earl asked whether there had not been many instances of applications for prohibitions to ecclesiastical Judges, and whether the Treasury had ever appeared on behalf of any ecclesiastical Judge in any such case. He had no doubt whatever that there had been various instances—he did not know how many—of applications for prohibitions to ecclesiastical Judges; and he did not know whether the Treasury had or had not directed the Solicitor to the Treasury to appear in any of those cases. But it should be observed that all those cases related to the interests of private persons, and the Judge of the Ecclesiastical Court had no occasion to appear as a party at all, as it made no difference to him as a public functionary what happened in those proceedings, and in such cases it would have been unusual and improper to direct the Solicitor to the Treasury to appear. But the present case was not one of that nature. It was a case in which the object of the proceeding in the Queen's Bench Division was to interpose the authority of that Court to declare that Lord Penzance, as an ecclesiastical Judge, whether in the Court of Arches or under the Public Worship Regulation Act, had no jurisdiction to order the suspension of a clergyman in order to enforce his obedience to a decree pronounced in an ecclesiastical suit of a criminal nature by his Court. That jurisdiction, whether a legal one or not—a point on which, of course, he expressed no opinion, because it was the question which the House of Lords might have to decide—had been exercised by Ecclesiastical Courts, and also by the Supreme Court of Ecclesiastical Appeal—by Her Majesty in Council, acting under the advice of the Judicial Committee. Therefore, the application to the Court of Queen's Bench tended to 1591 call in question the legality of the manner in which the law had been administered, not only by the Court of Arches and Lord Penzance as the Judge of that Court, but by Her Majesty through Her own Judicial Committee of Privy Council. The prohibition, therefore, went to the very root and branch of a jurisdiction which had been exercised in one of the very highest Courts of the Realm, and not only in Lord Penzance's Court, and consequently it became a matter of high public importance that the question should be decided whether that jurisdiction could be properly so exercised or not. It was from that point of view considered right that Lord Penzance should enter an appeal from the prohibition. When an action had been brought against a Judge in which it would be proper for him to appear in a matter concerning the discharge of his public and judicial functions, and when no kind of personal misconduct was imputed to him, it had always been usual for the Treasury to undertake his defence, in order that a question affecting the administration of justice and the public interests should be conclusively and satisfactorily determined. That was the reason why the Treasury had undertaken to defend Lord Penzance, and he must demur to one suggestion made by the noble Earl—namely, that the Judge of the Ecclesiastical Court was not one of Her Majesty's Judges. That Judge administered what a very great authority had called the Queen's Ecclesiastical Law, and by some of the leading statutes on ecclesiastical subjects it was declared that all ecclesiastical jurisdiction emanated from the Crown. It was true that this particular Judge was not appointed by direct Letters Patent of the Crown; but he was appointed under an Act of Parliament which vested the appointment in the two Archbishops. There was no doubt that the public interest was concerned in the due administration of Ecclesiastical Law as well as in the due administration of any part of the Temporal Law of the Realm. As to the noble Earl's Motion, he believed that no costs had been incurred except the necessary fees of counsel, and those of the shorthand writer. There would be no objection to lay the information asked for on the Table.
§ Motion agreed to.